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Afghanistan Murder Case Options: A Strategic Primer

From a trial law perspective, the United States v. SSG Robert Bales is not particularly exciting. Yes, I know that the acts themselves are highly newsworthy, but that’s not what I’m talking about. I’m talking about things from the perspective of trial strategy. Here’s how it will go.

Prosecutors try to prove that he a. committed the acts themselves and b. he knew what he was doing at the time he committed the acts.

Bales’ defense team will try to prove that he’s nuts.

From reading most news reports (which, like you, is the source of all my knowledge on this case), proving Bales’ commission of the acts is relatively easy for the government. There are oodles of witnesses, and it seems there may also be an exculpatory statement or two. Either way, nothing suggests that proving the act will be difficult.

Then, we come to his mental state. In the military, the question will be whether he “lacked mental responsibility at the time of the offenses.” Defense must prove this with clear and convincing evidence. They will attempt to do this by showing his good service record, past behavior, his status as a family man, character witnesses to talk about him as a soldier and leader, possible erratic behavior (observed by others) shortly before the murders, and (most importantly) the opinion mental health professionals (psychiatrists and psychologists). The government will counter the defense with their own mental health professionals. Then, a judge or jury (court-martial panel) must decide whether they buy the “lack of mental responsibility” defense.

If one is found to lack mental responsibility, they are evaluated as to whether they are a danger to themselves or others. If deemed to be a danger, they are sent to a federal mental institution to receive treatment, therapy, and have the possibility of release someday (think Reagan’s would-be assassin)

I’ve tried it twice. I failed twice. (though, it was contributed to a particularly light sentence in one case (but my client was still found guilty))

It is tough. Though, it has a great chance in SSG Bales’ case.

So, this leads to two realistic outcomes.

He is found guilty and punished harshly (death or life).

He is found to lack mental responsibility and becomes great friends with John Hinckley Jr.

Let’s pontificate, from a strategic level (outside the trial and life of SSG Bales), about what happens with various options in the ultimate disposal of this case. Bear in mind that the people of Afghanistan are demanding (quite forcefully) that he be adjudicated on their terms.

The Command accepts that he lacks mental responsibility prior to trial and has him committed to a mental institution as part of a pretrial agreement.

This is always possible. They could acknowledge that he clearly snapped and that his prior combat stress, multiple deployments, worries about family and friends, and everything else contributed to his diminished mental wellbeing.

Likely Result: People of Afghanistan become red with anger and take their frustrations out on US service members stationed in-country. Violence erupts and deployed service members and innocent Afghanis suffer.

The Command tries him at court-martial and a military panel (jury) finds him to lack mental responsibility for the acts.

This could happen, as per the discussion above.

Likely Result: People of Afghanistan become red with anger and take their frustrations out on US service members stationed in-country. Violence erupts and deployed service members and innocent Afghanis suffer.

The Command tries him at court-martial at Joint Base Lewis-Mcchord (Bales’ home base near Seattle). He is found guilty and sentenced to some punishment (likely life without parole).

Considering that we’re talking about the murder of many innocent people, this could absolutely happen after due consideration, especially if the jury does not believe that a relatively-senior Staff Sergeant should lose his composure in such a catastrophic way.

Likely Result: People of Afghanistan become red with anger and take their frustrations out on US service members stationed in-country. Violence erupts and deployed service members and innocent Afghanis suffer.

The command tries him at court-martial at Joint Base Lewis-Mcchord. He is found guilty and sentenced to death.

Sure, it could happen. However, how persuasive is a capital punishment system that hasn’t been utilized since 1961? As a practical matter, this means he’ll sit at Leavenworth until death from natural causes. This possibility, however, will take years to reach adjudication.

Likely Result: People of Afghanistan become red with anger and take their frustrations out on US service members stationed in-country. Violence erupts and deployed service members and innocent Afghanis suffer.

Considering the possible strategic outcomes, this leaves the Commanding General with only one thing to consider: Was this Soldier crazy and overcome by combat stress? If so, what can we do to help him (and his family) regain health (mental and physical) while also respecting the horrifying loss of life in Afghanistan?

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